Stowman, Matter of

Decision Date20 February 1985
Citation200 N.J.Super. 507,491 A.2d 1275
PartiesIn Re the Matter of Lieutenant Charles STOWMAN, Corrections Officer, Department of Corrections, Leesburg State Prison (Disciplinary Grievance).
CourtNew Jersey Superior Court — Appellate Division

Richard Shackleton, Forked River, for appellant (Shackleton, Hazeltine & Buczynski, Forked River, attorneys; Salvatore D. Depinto, Imlaystown, on brief).

Lewis A. Scheindlin, Deputy Atty. Gen., for respondent (Irwin I. Kimmelman, Atty. Gen., James J. Ciancia, Asst. Atty. Gen., of counsel; Lewis A. Scheindlin, Deputy Atty. Gen., on brief).

Before Judges KING, DEIGHAN and BILDER.

PER CURIAM.

Appellant Charles Stowman, a lieutenant in the Department of Corrections (Department), assigned to Leesburg State Prison, appeals from a five-day suspension imposed upon him after a departmental hearing. On February 1, 1983, appellant was served with a notice of minor disciplinary action charging him with a violation of administrative regulations involving safety and security. The notice contained the following specification of the charges On 1/18/83 your [sic] turned over an incorrect institution count to the second shift. Approximately 12:10 p.m. it was reported to you by Off. Blystone that inmate Sharme 68446 was discharged and asked you to sign the discharge papers [which you did]. You never dropped him from the master count book nor did you tell Off. Sokolov to drop him from his Unit Count.

Appellant was informed that he would be suspended for five-days.

Appellant appealed the determination and a departmental hearing was held on February 5, 1983. The hearing officer, Lawrence Ashton, sustained the charges against appellant and sustained the five-day suspension. Appellant appealed to this court. We reversed appellant's suspension and remanded for further proceedings because of the absence of evidence that appellant had a continuing duty on the day of the incident to prepare an inmate count report. In an unpublished opinion we stated:

... Perhaps Chief Ucci could have cast illumination on the subject, but he preferred to limit his presentation at the hearing to the submission of documentary exhibits, and not to be sworn as a witness. Without testimony from someone as to the precise nature of petitioner's responsibility as to maintaining a correct count, there was nothing in the record to enable the hearing officer to make a knowledgeable finding of fact on the issue.

On remand, the same hearing officer, Lawrence Ashton, conducted another informal hearing.

Chief James Ucci, the deputy keeper of Leesburg State Prison, testified that on January 18, 1983, beginning at 11:30 a.m. appellant was the center keeper. The center keeper supervises the operation of a shift. He receives inmate counts from various areas of the institution and maintains a log showing the number of inmates in the prison. If an inmate is released or enters the prison, it is his responsibility to ensure that this is recorded in the log. At 11:30 a.m. on January 18, 1983, Chief Ucci relieved Lieutenant Parsons, the center keeper, from that duty and told him to have appellant replace him as center keeper. Chief Ucci stated that he went to the center area several times after this and saw appellant acting as center keeper.

From the reports entered into evidence, at 12:10 p.m. on January 18, 1983, while appellant was serving as center keeper, he signed a discharge form for the release of inmate Sharme. Although the 11:30 a.m. count listed Sharme as being out, the 4 p.m. count listed him as present. Sharme had in fact been released, but the count did not reflect this until 8 p.m.

The Department entered into evidence a memorandum from Edward O'Lone, superintendent of the Leesburg State Prison, outlining the duties of a center keeper. Also entered was the interoffice memorandum of Lieutenant Preston Hoffman to Chief Ucci stating that the court log prepared by appellant for his shift on January 18, 1983, did not properly account for inmate Sharme's release.

When the hearing convened on February 23, 1984, appellant's attorney called Lieutenant Hoffman as his first witness and requested that he be sworn. The hearing officer refused to have the witness sworn, and stated it was unnecessary in an administrative hearing. Further, all other witnesses were not sworn. Upon counsel's refusal to present testimony from any witness who was not sworn, the hearing officer terminated the hearing. Ashton issued a decision upholding the charges and sustaining the original sanction.

Appellant contends that the hearing officer erred by refusing to permit appellant to have witnesses sworn thereby denying him due process of law. He also contends that the decision of the hearing officer is not supported by sufficient credible evidence. The latter contention concerning an insufficiency of credible evidence is totally without merit. The decision is supported by sufficient credible evidence on the record as a whole, R. 2:11-3(e)(1)(D). Moreover, the evidence is comprised basically of documents.

In support of his contention that the refusal of the hearing officer to have witnesses sworn under oath, "or otherwise sworn" was in violation of the petitioner's right of due process, appellant relies on decisional and encyclical authority on the necessity and sanctity of an oath. The authorities cited by appellant are indeed accurate and sound; the only problem we have is that those formalities are required in formal adversarial proceedings and are predicated upon some basic statute or rule. For instance, New Jersey Evid.R. 18 requires that a witness before testifying shall take an oath or make an affirmation or declare to tell the truth under the penalty provided by law. This rule has been adopted by statute. N.J.S.A. 2A:84A, Rule 18. The same rule has been adopted by the New Jersey Uniform Administrative Procedure Rules, (1980), N.J.A.C. 1:1-15.5(b).

There is no statutory right to a civil service hearing for a suspension of five-days. See Perrapato v. Rose, 83 N.J.Super. 245, 248-249, 199 A.2d 385 (App.Div.1964). The Civil Service Act provides for a hearing by the Civil Service Commission only where a classified employee is suspended for more than five-days. N.J.S.A. 11:2A-1 and N.J.S.A. 11:15-5.

Contrary to appellant's contention unless required by statute, rule or regulation, sworn testimony of witnesses in administrative proceedings need not be taken. In Amon v. Rahway, 117 N.J.L. 589, 190 A. 506 (Sup.Ct.1937), a zoning board of adjustment refused to allow witnesses to be sworn. Id. at 592, 190 A. 506. On appeal the Supreme Court commented "the statute does not require that sworn testimony of witnesses be taken." In Wilson v. Union Township, 123 N.J.L. 474, 9 A.2d 771 (Sup.Ct.1939), it was argued that a board of adjustment did not swear in witnesses. Again, the Supreme Court, referring to Amon simply stated: "Nor is it necessary that witnesses be sworn in matters of this kind. The statute does not so require." Id. at 477, 9 A.2d 771.

Since appellant is not protected by the Civil Service statutes in this matter, he is entitled to no more than basic fairness at the Department of Corrections' hearing. Nicoletta v. No. Jersey District Water Supply Commission, 77 N.J. 145, 390 A.2d 90 (1978). In the absence of a statutory or contractual right to a formal hearing, it is arguable that appellant did not come within the scope of due process protection. To establish a constitutional right to a hearing, an aggrieved employee must show that there is a genuine dispute of material fact and that he has a constitutionally protected interest. In re Crowley, 193 N.J.Super. 197, 209, 473 A.2d 90 (App.Div.1985), quoting Cunningham v. Dept. of Civil Service, 69 N.J. 13, 18-19, 350 A.2d 58 (1975).

Nevertheless, even if appellant was entitled to due process protection, he has not shown that he was entitled to have witnesses sworn before testifying at the hearing on the charges against him. In Nicoletta, supra, the court observed that among the important elements of a fair hearing is the opportunity to present reasons why the proposed action should not...

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3 cases
  • Mohilef v. Janovici, B096420
    • United States
    • California Court of Appeals Court of Appeals
    • November 27, 1996
    ... ... ) This determination, according to the AZA, was "[b]ased upon the oral and written testimony as a result of the public hearing on this matter, including letters, photographs and correspondence in the case file, and the Staff Report." Included among the AZA's specific findings of fact were ... at p. 238, 531 P.2d at pp. 401-402.) ...         In Matter of Stowman (1985) 200 N.J.Super. 507, 491 A.2d 1275, an employee of the New Jersey Department of Corrections received a five-day suspension for unsatisfactory ... ...
  • Wolf, Matter of
    • United States
    • New Jersey Superior Court — Appellate Division
    • March 14, 1989
    ... ... State, 60 N.J. 36, 50-51, 286 A.2d 43 (1972) (rules of evidence barring hearsay are not to "be regarded as controlling"); Matter of Toth, 175 N.J.Super. 254, 262, 418 A.2d 272 (App.Div.1980) (hearsay may be used in agency's determination of case); Matter of Stowman, 200 N.J.Super. 507, 511, 491 A.2d 1275 (App.Div.1985) (it is not necessary, unless required by statute, that witnesses swear to tell the truth in administrative proceedings). And see N.J.S.A. 52:14B-10(a) (Administrative Procedure Act provision stating that "[t]he parties shall not be bound by ... ...
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    • New Jersey Supreme Court
    • May 13, 1985
    ... ... As to that count, the Appellate Division vacated the conviction and remanded the matter to the trial court for disposition ...         Defendant began serving his prison term in August 1982 and has completed his sentence on the ... ...

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